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the court will not of its own initiative object to the proof of the contract, nor consider whether the testimony is apt to be perjured.143 It is too late for even a party to object that the contract is not in writing, after the trial has been had without such objection.144

If the contract is permitted to be proved because there has been such acceptance, or part payment, or memorandum, as will take it out of the Statute, its terms and its effects are considered as of the date it was entered into. If proved, it takes effect as a valid oral contract, not as though it were some new agreement entered into at the time the acceptance or payment occurred, or the memorandum was written. For instance, in Vincent v. Germond,145 the plaintiff had sold four cattle to the defendant with the express stipulation that the risk of loss should be on the defendant. It was an oral contract, with nothing to take it out of the Statute. One of the cattle died. Subsequently the defendant received and accepted the remaining three. The seller was given judgment against him for the price of all four cattle. Although the fourth animal was not in existence when the receipt and acceptance took place, the buyer's liability was determined by the terms of the oral contract and as of the date on which it was entered into.146

In fact, there is nothing to indicate but that the contract is good and valid in all respects, if it can be proved.

-As Regards Third Persons.-As regards third persons, not parties to the contract, or in privity with the parties, the contract is equally good and valid if proved. Moreover, as regards such third persons, the contract does not need to conform to the Statute in order to be provable. As to them the oral contract is not only allowed to be good; it is even allowed to be proved, despite objection and appeal to the Statute. In Jackson v. Stanfield,147 for instance, the plaintiff sued to recover damages because defendant had induced the Studebaker Bros. to break a contract with plaintiff. This contract was oral, for the sale of chattels, and came within the Statute. The court said, “It is urged that the contract between the Studebaker Bros. Manufacturing Compan and appellant Newton Jackson is void under the Statute of Frauds, because the value of the lumber was over $50, and the finding does not show that the offer was accepted in writing. If this be true, it is no concern of the appellees (the defendants). Parties to contracts and their privies can alone take advantage of the fact that a contract is invalid under the Statute of Frauds. Many forms of expression by this and other courts illustrate the doctrine that a third person can not make the Statute of Frauds available to overthrow a transaction between other persons; that the defense of this Statute is purely a personal one and can not be made by strangers.148 It concerns the remedy alone, and the modern law is well settled that, in the absence of a statutory provision to the contrary, the effect of the Statute is not to render the agreement void, but simply to prevent its direct enforcement by the parties, and to refuse damages for its breach' 149

143-Booker v. Wolf, 195 Ill. mulgee Mills, 55 Ga. 633; Riley v. 365; Mather v. Scoles, 35 Ind. 1, Bancroft's Est., 51 Neb. 864, hold. referring to the 4th section only. ing that title passed when the con

144—Simis v. Wissel, 41 N. Y. tract was made, even though the S. 1024, referring to sec. 4; Mich- acceptance which permitted proof els v. West, 109 Ill. Ap. 418, sec. 4. of the contract did not take place

145—11 Johns. (N. Y.) 283. till some time after; Amsinck v.

146_Accord, Townsend y. Har. Am. Ins. Co., 129 Mass. 195, title graves, 118 Mass. 325, citing passes so as to give buyer an inLeather Cloth Co. v. Hieronimus, surable interest at date of oral L. R. 10 Q B. 140; Phillips v. Oc. contract.

147—137 Ind. 592, 23 L. R. A. 588.

148-Citing other Indiana cases and 8 Am. & Eng. Encyc. of Law, 659.

149—The Indiana statute provides that such contracts "shall not be valid." Accord, Benton v. Pratt, 2 Wend. (N. Y.) 385, 20 Am. Dec. 623; Rice v. Manley, 66 N. Y.

82, 233 Am. Rep. 30; Int. & G. N. Ry. V. Searight, 8 Tex. Civ. Ap. 593; Cowan v. Adams, 10 Me. 374, 25 Am. Dec. 242.

An insurance company can not defeat the claim of insured on the theory that a contract between the insured and some one else was rendered void by the Statute. Northwestern Mutual Life Co. v. not take advantage of the statute, are the cases cited in the follow. ing notes.

As to Persons in Privity with the Parties. A third person, however, who is in privity of relation with a party to a contract can take advantage of the Statute to protect himself. Thus a buyer in good faith from one in possession of the goods can use the Statute in defense against a plaintiff who claims the property under a prior oral contract. 160

-Creditors.-Creditors of a seller are not considered as privies to the contract and therefore can not set up the Statute to derogate the effect of the contract.

Heiman, 93 Ind. 24, promise to answer for debt of another; Mutual Mills Co. v. Gordon, 20 Ill. Ap. 559; Amsinck v. Am. Ins. Co., 129 Mass. 185, dictum; Cowell v. Phoenix Ins. Co., 126 N. C. 684, sale of land.

In an action for damages be. cause the defendant company had failed to deliver the message which would have created a profitable contract between plaintiff and a third person, it was held that the company had no defense in the fact that, because of the Statute, plaintiff could not have enforced the contract had the message been delivered. Purdom Naval Stores Co. v. Western Union Tel. Co., 153 Fed. 327; Kratz v. Stocke, 42 Mo. 351.

A written contract for sale of land on condition that it has not already been sold can not be enforced if there had been in fact a previous sale, even though that sale itself was oral only and not enforcible because of the Statute. Jacob v. Smith, 28 Ky. 380; Bohannon v. Pace, 36 Ky. 194. The rights of creditors to set up the Statute are noted hereafter.

In possible conflict with this principle, that a third person can

150—First National Bk. v. Blair State Bk., 80 Neb. 400, 127 Am. St. 752. The reason given in this case is not that the second buyer is in privity with his seller in relation to the first contract, but the seller, in making the second sale, "repudiates and avoids" the first contract.

In Mahan v. U. S., 16 Wall. 143, the government, as confiscator of cotton alleged to be the property of A, was allowed to set up the Statute in defense to a claim by B that the cotton had previously been sold to her by oral contract. The theory appears to be, how. ever, that the Statute made the sale void.

Sonneman v. Mertz, 221 Ill. 362.

In Petty v. Petty, 4 B. Monroe (Ky.) 215, 39 Am. Dec. 501, it was held, without reason given, that heirs of land could set up the statute against an oral contract made by their father on consideration of marriage. Accord, Vaughn v. Vaughn, 100 Tenn. 282, 45 S. W. 677; Sebben v. Treze. vant, 3 Desaus. (S. C.) 213.


As a Defense.-In another way, also, oral contracts within the Statute have in fact been allowed to be good even as between the parties. This is the case in which suit on a provable contract is defeated by showing that such written, or otherwise provable contract, has been rescinded through the substitution of a later oral contract. Even though the later contract is within the Statute and suit could not be brought upon it, some courts have nevertheless recognized its effect as putting an end to the original contract for which it was substituted. 162

151-Cresswell V. McCaig, 11 Neb. 222; Cahill v. Bigelow, 18 Pick. (Mass.) 369; Gordon V. Tweedy, 71 Ala. 202 land; Brown V. Rawlings, 72 Ind. 505 land; Minus v. Morse, 15 0. 568, 45 Am. Dec. 90 land.

An assignee for benefit of creditors can not set up the statute if the seller, his assignor, himself does not, Walker's Assignee v. Walker, 21 Ky, L. R. 1521.

In Waite v. McKelvey, 71 Minn. 167, however, it was held that a sheriff who had levied on chattels acquired all the title that the judgment debtor—the seller-had, and therefore could set up the statute against an alleged buyer under an oral contract. The theory was that the statute made the contract void.

152-Reed v. McGrew, 5 0. 376, sale of land; Dearborn v. Cross, 7 Cow. (N. Y.) 48, sale of land.

In general, a contract within the statute may be proved as a defense to an action on the common counts, Laffey V. Kaufman, 134 Cal. 391; Weber v. Weber,

- Ky. 76 S. W. 507; Schechinger v. Gault, 35 Okla. 416, though Statute

made it "invalid"; McKinnie v. Harvie, 28 Minn. 18; Sims V. Hutchins, 8 S. & M. (Miss.) 328; Philbrook v. Belknap, 6 Vt. 383.

In Morris v. Baron & Co., H. of L. 87 L. J. R. (K. B.) 145, an oral contract for sale of goods was held sufficient to defeat a prior en. forcible contract for sale of goods for which the latter had been substituted. A positive action on the latter contract was refused. Some stress is given to the fact that the particular statute here in. volved provided only that oral contracts should not "be enforced by action."

The question of whether a contract of sale can be rescinded or altered by a later agreement not in writing is not peculiar to contracts of sale, nor in any way related to the statute of frauds. It is merely the general question as to whether any contract which is itself required to be in writing can be altered by subsequent oral contract. The Statute of Frauds itself does not cover the question. There is considerable conflict in the decisions on the question.

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In various other respects, also, courts have given effect to a contract on which no action could have been maintained directly. 153

On the other hand, if the Statute is intended to prevent perjury, rather than merely to protect property rights,164 the damage is equally great whether a contract is sued on or is set up in defense. For this reason other courts have refused to admit evidence of an oral contract within the Statute even by way of defense. 156

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For various

other purposes, Michels v. West, 109 Ill. Ap. 418; Coughlin v. Knowles, 7 Metc. (Mass.) 57.

Oral extension of time was allowed in Neppach v. Oregon etc. R. R., 46 Ore. 374, 7 Ann. Cas. 1035, in which much conflicting authority is cited.

153—Such is its use to show value in an action on quasi-contract. Murphy v. DeHaan, 116 Ia. 61, although statute provided that "no evidence should be given" of such contracts.

Contra, because made "void," Sutton v. Rowley, 44 Mich. 112.

To show the amount of rent due, Evans v. Winona Lumber Co., 30 Minn. 515; Steele V. AnheuserBusch Ass'n, 57 Minn. 18.

To show amount of damage, Burrus v. Hines, 94 Va. 413.

154—"The statute of frauds and perjuries (was) a great and necegsary security to private property", Blackstone, Commentaries, Bk. 4, *p. 440.

155—Scotten v. Brown, 4 Har. (Del.) 324; Bernier v. Cabot Mfg. Co., 71 Me. 506; King v. Welcome, 5 Gray (Mass.) 41, statute provided only that "no action shall be brought”; Zeuske v. Zeuske, 55 Ore. 65, Ann. Cas. 1912 A 557; Nelson v. Shelby Mfg. Co., 96 Ala. 515, statute made contract "void”; Lemon v. Randall, 124 Mich. 687, id.; Salb v. Campbell, 65 Wis. 405; Kelley V. Thompson, 181 Mass. 122, not allowed by way of estab. Ushing a set-oti.

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